U.S.A. v. White

• Decision Date: 01 August 2000
• Citation: 240 F.3d 127
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. SAMUEL O. WHITE, Defendant, LUIS NOEL CRUZ, aka Danny Cruz, Defendant-Appellant, Docket No 00-1113
• Court: U.S. Court of Appeals — Second Circuit

Page 127

240 F.3d 127 (2nd Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. SAMUEL O. WHITE, Defendant, LUIS NOEL CRUZ, aka Danny Cruz, Defendant-Appellant,

Docket No 00-1113

August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: January 2, 2001

Decided: February 13, 2001

Corrected February 14, 2001

Defendant appeals from a final judgment of conviction entered on January 27, 2000, in the United States District Court for the Western District of New York (Arcara, Judge), arguing that: (1) his convictions for drug distribution under 21 U.S.C. § 841(a) must be dismissed as lesser included offenses of his convictions for drug distribution within 1000 feet of a school under 21 U.S.C. § 860; (2) the district court misunderstood its authority to depart from a sentence of 240 years imprisonment; (3) the district court's sentencing Mr. Cruz to a life sentence based on its own findings of drug quantity by a preponderance of the evidence violated due process under Apprendi v. New Jersey, 120 S. Ct. 2348 (2000) (to be published at 530 U.S. 466); (4) Mr. Cruz was denied a fair trial due to the admission of testimony suggesting that he had taken part in other crimes; and (5) the district court improperly enhanced his offense level based on his attempted obstruction of justice.

Affirmed in part and vacated and remanded in part. [Copyrighted Material Omitted] DARRELL B. FIELDS, Legal Aid Society, Federal Defender Division Appeals Bureau, New York, NY, for Appellant.

THOMAS S. DUSZKIEWICZ, Assistant United States Attorney, for Denise E. O'Donnell, United States Attorney for the Western District of New York, Buffalo, New York, for Appellee.

Before: SACK, SOTOMAYOR, KATZMANN, Circuit Judges.

KATZMANN, Circuit Judge:

Luis Noel Cruz appeals from a final judgment of conviction entered on January 27, 2000, in the United States District Court for the Western District of New York (Arcara, Judge). He argues that: (1) his convictions for drug distribution under 21 U.S.C. § 841(a) must be dismissed as lesser included offenses of his convictions for drug distribution within 1000 feet of a school under 21 U.S.C. § 860; (2) the district court misunderstood its authority to depart from a sentence of 240 years' imprisonment; (3) the district court's sentencing Mr. Cruz to 240 years based on its own findings of drug quantity by a preponderance of the evidence violated his right to due process under Apprendi v. New Jersey, 120 S. Ct. 2348 (2000) (to be published at 530 U.S. 466); (4) Mr. Cruz was denied a fair trial due to the admission of testimony suggesting that he had taken part in other crimes; and (5) the district court improperly enhanced his offense level based on his attempted obstruction of justice. Mr. Cruz prevails on his first two arguments, and we therefore vacate the convictions under 21 U.S.C. § 841(a) and remand the case to the district court for resentencing, which shall include a determination of whether a downward departure would be appropriate. We find, however, that Mr. Cruz's remaining arguments are without merit, and so affirm the district court as to those issues.

I. Background

Following a jury trial, Mr. Cruz was convicted of one count of conspiracy to possess with intent to distribute and to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846 ¹ ; two counts of possession with intent to distribute and distribution of cocaine base and cocaine, respectively, in violation of 21 U.S.C. § 841(a)(1) ² ; two counts of possession with intent to distribute cocaine base and cocaine, respectively, within 1000 feet of a public school, in violation of 21 U.S.C. § 860(a) ³(the "schoolyard counts"); and one count of use of a person under 18 to assist in the distribution of cocaine base and cocaine, in violation of 21 U.S.C. §§ 861(a)(1) ⁴ and 861(a)(2) ⁵.

The evidence presented to the jury showed that Mr. Cruz had engaged in three separate drug transactions on August 19, August 21, and September 9, 1998. The parties stipulated to the quantity and type of drugs recovered in each transaction together, the sales involved a total of 23.7 grams of cocaine base (or "crack" cocaine) and 13.51 grams of cocaine. The sale of this quantity of drugs would normally result in a base offense level of 28. See United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1(c)(6).

However, the United States Probation Office, in its presentence report, recommended that the district court use a base offense level of 34 in calculating Mr. Cruz's sentence, based on "relevant conduct," see id.§ 1B1.3, and also recommended several enhancements, which would result in an adjusted offense level of 43. Regarding "relevant conduct," the Probation Office stated that the confidential informant who was involved in two of the three drug sales charged in the indictment, Edwin Williams, would testify that he purchased an "eight-ball" (or approximately 3.6 grams) of cocaine base from Mr. Cruz every day over a period of two years. Taking a "conservative estimate" of 100 sales over that period of time, the Probation Office estimated that during this period, Mr. Cruz sold 350 grams of cocaine base to Mr. Williams. The Probation Office also included 56.7 grams of cocaine base that Mr. Cruz allegedly offered to sell the undercover officer, Timothy Taylor, on September 9, 1998. The Probation Office deemed the 13 grams of powder cocaine sold by Mr. Cruz on August 21, 1998 to be inconsequential, and so did not include that amount in its calculation of drug quantity. Nor did it apparently include the 3.47 grams of cocaine base Mr. Cruz sold on August 19, 1998. The Probation Office calculated the total quantity of drugs to be 406.7 grams of cocaine base, the distribution of which constitutes a base offense level of 34.

Both the government and the defendant submitted objections to the Probation Office's presentence report, and, on June 5, 1999, the district court held an evidentiary hearing to help determine the quantity of drugs that should be taken into account in calculating Mr. Cruz's sentence. The court heard the testimony of three witnesses, Edwin Williams (the confidential informant), Carol Belcer (Williams' longtime girlfriend), and Rosa Santiago, Mr. Cruz's girlfriend at the time of his arrest. Following the hearing, the Probation Office "revised its calculations to 2,449.71 grams of cocaine base." The district court noted that "Williams' testimony was not altogether clear or consistent regarding the dates when he dealt with defendant or amounts involved in these transactions." Nonetheless, the court, in a Decision and Order dated September 16, 1999, found that Williams' and Belcer's testimony was credible enough to allow the court to determine based on a preponderance of the evidence that Mr. Cruz had sold a quarter ounce of cocaine base to Mr. Williams every day for a period of six months in 1997, and that he sold varying amounts to Mr. Williams two or three times a week from April to September of 1998. Based on these findings, the court estimated that Mr. Cruz sold 1062 grams of cocaine base in 1997, and 141.6 grams in 1998. It discounted evidence of other sales as insufficient to meet the evidentiary standard, and declined to resolve whether the 56.7 grams of cocaine base Mr. Cruz allegedly offered to sell Officer Taylor could be used in determining the total drug quantity, as that additional amount would have no effect on the defendant's sentence in any event. The court thus found that the defendant had sold 1203.6 grams, or 1.2 kilograms of cocaine base, and that his base offense level was therefore 36. Because the offense was committed near a school, the court added one level under section 2D1.2(a)(2), for a total base offense level of 37. It then applied the following enhancements: two levels for obstruction of justice under section 3C1.1 of the Sentencing Guidelines (based on Mr. Cruz's attempt to get his then-girlfriend, Ms. Santiago, to claim that the drugs sold on September 9, 1998 were hers); two levels for possession of a firearm under section 2D1.1(b)(1); and two levels for the use of a minor in committing the offense under section 3B1.4 (for his use of Ms. Santiago, then a minor, to hide the drugs involved in the September 9, 1998 deal). Thus, the court calculated Mr. Cruz's offense level at 43, which carries a sentence of life imprisonment under the Sentencing Guidelines. See U.S.S.G. Ch. 5, pt. A

Because a sentence of life imprisonment exceeds the statutory maximum sentence for any one of the crimes of which Mr. Cruz was convicted, the district court applied section 5G1.2(d) of the Sentencing Guidelines, which provides:

If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. In all other respects, sentences on all counts shall run concurrently, except to the extent otherwise required by law.

U.S.S.G. § 5G1.2(d). The court therefore sentenced Mr. Cruz to the maximum sentence on each count,⁶ and ran the sentences consecutively, to achieve a sentence equivalent to life imprisonment: 240 years. In so doing, the court stated that "there's no leeway for the Court, based on the findings of the Court."

II. Discussion

A. The Drug Distribution Counts

On double jeopardy grounds, Mr. Cruz asks that we vacate his convictions on counts two and three of the indictment, which charge him with drug distribution in violation of 21 U.S.C. § 841(a), arguing that his conviction on those counts is duplicative of his convictions on the schoolyard counts in violation of 21 U.S.C. § 860(a). The Government concedes that the § 841(a) counts are lesser included offenses of the schoolyard counts. We would typically review this double jeopardy argument, which is a question of law,...